The EU Services Directive – Law or Simply Policy?
Abstract: The balance between the regulatory autonomy of the Member State of the European Union and the requirements of harmonisation as set out in the EU Services Directive (2006/123/EC) is the subject of this work. The overall effects of the free movement of services on national regulatory autonomy as prescribed by the Services Directive is to a great degree dependent upon whether this directive is perceived of as a traditional directive or instead, as a governance instrument to control and steer the actions of the Member States. The Services Directive, on one hand, establishes definitions of what may constitute non-justified national requirements that do not correspond to the established Union acquis interpreting the Treaty Articles on the free movement of services, whereby it could be considered to entail undue alteration or distortion of this acquis. On the other hand, the Services Directive also contains instruments for accomplishing the objectives of the Directive through a new and more profound type of collaboration and mutual evaluation procedures by the Member States in cooperation with the European Commission. If these features are emphasised, the Services Directive is mainly a governance strategy, aiming to steer and control the Member States when regulating the services market. The point of departure in this study is therefore that the Services Directive shows a two-edged character, where both sides are represented.The final analysis focuses on the Directive’s potential effects on the Member States’ room for manoeuvrability within their national regulatory autonomy, and what general constitutional implications follows from the adoption of one or the other of these two understandings of the Directive. The thesis demonstrates the complexity of the Union legal system in relation to the obligations set out in the Treaty Articles on the free movement of services. A general conclusion is that the understanding of the Services Directive is signified by the tensions between the interpretations established by the Court in its case law on the free movement of services, the regulatory powers conferred on the Union and the effects of Union law on the national regulatory autonomy.
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